Baysultanov v. Russia (Application no. 56120/13)

selection of key paragraphs can be found below the judgment. 


77.  Although the investigators did not remain idle in the course of the investigation, their activity lacked thoroughness and promptness. As is apparent from their own conclusions, owing to the narrow search area during the crime scene examination, they failed to find and collect the Kalashnikov cartridge cases. Furthermore, according to the investigators themselves, the swabs from the applicant and his late wife were taken belatedly (see paragraph 56 above). Moreover, it appears that not every officer involved in the special operation was questioned and not all of their firearms were examined (see paragraphs 28 and 44 above).

78.  As a result of the numerous shortcomings, the investigators failed to reconstruct the chain of the events leading to the application of lethal force and to establish the key elements of the incident. For example, they failed to identify the individual armed with the Kalashnikov (it remained unclear whether it had been the applicant or his wife), the individual who had thrown the grenade and the officer who had allegedly removed the bullet from the chamber of the Kalashnikov. The Court finds such an outcome unsatisfactory, regard being to the fact that there was video footage of the special operation, which, contrary to the superior investigators orders, has apparently never been examined (see paragraph 40 above); that the incident took place in the presence of a number of witnesses, all of whom had been law-enforcement agents and should have paid particular attention to what have been happening during the special operation.

80.  As regards the manner in which the investigation was conducted, the Court cannot overlook that it was suspended, discontinued and then resumed and reopened on many occasions (see paragraphs 283132354041445052 and 56 above). Such premature suspensions and terminations of the criminal proceedings in a situation in which vital steps indicated by the superior authority had not been taken obviously undermined the investigators ability to identify and prosecute the perpetrators (see Ögur v. Turkey [GC], no. 21954/93, § 88, ECHR 1999III, and Khava Aziyeva and Others v. Russia, no. 30237/10, § 86, 23 April 2015).

82.  Accordingly, the Court concludes that there has been a violation of Article 2 of the Convention under its procedural head.

(ii)  Responsibility of the State for the death of Ms Saniyat Magomedova and the applicants injuries

88.  First of all, the Court notes that the special operation was not spontaneous. It was planned in advance, on 2 November 2006, and the officers arrived at the applicants house at least one hour before it started (see paragraphs 6 and 9 above). The officers were well-equipped and were intending to arrest one man, Mr A.B. However, there is nothing in the documents reviewed by the Court to suggest that any serious consideration was devoted at the planning stage of the operation to the possibility that the suspect might try to escape or that the applicant or his family could assist him in that (see paragraphs 6 and 8 above).

89.  By the time the applicant and his wife stepped out of the house the officers had already taken their places in the ambush. They monitored the house and ought to have been ready for the developments which followed. However, as soon as the applicant and his wife moved several steps away from the house, the officers opened fire, intensively shooting off more than sixty rounds in a chaotic fashion at them without any order to open fire having been given (see paragraph 11 above). No precautions were taken by the State agents with a view to safeguarding the lives of Ms Saniyat Magomedova or the applicant. They were neither offered a chance to surrender nor were warning shots fired in the air by the officers (contrast Oláh v. Hungary (dec.), no. 56558/00, 14 September 2004). The applicant and his wife were shot several times in a situation where there was no immediate threat to the safety of the officers shooting from cover. The Court finds that such conduct by State agents could not be justified.

90.  In the light of the foregoing, the Court concludes that the Government have failed to demonstrate that the resort to lethal force against Ms Saniyat Magomedova and the applicant was absolutely necessary. It cannot conclude that the use of such force by service personnel was based on an honest belief which was perceived, for good reasons, to be valid at the time (see Akhmadov and Others v. Russia, no. 21586/02, § 101, 14 November 2008, and Suleymanova v. Russia, no. 9191/06, § 85, 12 May 2010; see, by contrast, McCann and Others v. the United Kingdom, 27 September 1995, § 200, Series A no. 324).

91.  There has accordingly been a violation of the substantive aspect of Article 2 of the Convention.


De versie van de browser die je gebruikt is verouderd en wordt niet ondersteund.
Upgrade je browser om de website optimaal te gebruiken.